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What's Happening at the West Virginia Legislature - Issue 3
January 21, 2019
By the end of the 10th day of the 60-day session, the House has introduced 522 bills and the Senate 354. We discuss below a few of those bills and other developments in West Virginia that may interest our readers.
 
Echoes of the events that overwhelmed the Supreme Court of Appeals of West Virginia in 2018 seemingly continue to reverberate this year in certain legislation introduced in the West Virginia Legislature. Last week, we reported on SB 2/SB 266, a bill to create an intermediate court of appeals, a tribunal long opposed by the Supreme Court itself, together with the plaintiff's trial bar and others. This week, several bills relating to the Court started advancing through the process.
 
HB 2164
Indeed, the very first bill to complete action in one chamber this session, HB 2164, provides that appeals to the Supreme Court are a matter of right and every party must have the opportunity to be heard and obtain a decision on the merits of the case. HB 2164 was reported to the Senate on January 17.
 
HB 2008
A bill taking aim at the election process for Supreme Court justices advanced out of House Judiciary and is expected to pass out of the House early this week. HB 2008 provides that where no candidate for justice receives more than 40 percent of the votes cast, a run-off must be held between the top two vote getters. In November 2018, two justices were elected to fill the seats vacated earlier by resignations. In each race, there were 10 candidates, creating the danger that a justice would be elected with as little as 15 percent of the total votes. Such a dire result did not occur, but the winners of those elections, Justices Armstead and Jenkins, received only 26 percent and 36 percent, respectively. Similarly, the winner of the 2016 Supreme Court election, Justice Walker, also failed to breach the 40 percent threshold. Thus, in all of those recent races, HB 2008 would have mandated a run-off.
 
SUPREME COURT BUDGET
For perhaps the first time in the history of this state, the Supreme Court submitted its budget to the legislature for approval. With the easy passage of this Judicial Budget Oversight Amendment in November, the high court's annual expenditures will now be scrutinized and voted on by legislators.The budget request of $131.15 million for 2019-2020 fiscal year is actually $8.6 million less than the current year's budget. However, if the legislature creates an intermediate court of appeals, one should expect a supplemental appropriation to this budget request.
 
HB 2351
The second bill to complete legislative action in one chamber is HB 2351, a bipartisan bill requiring insurance companies to accept electronically transmitted prior authorizations and, in addition to other requirements, mandates insurance companies respond to such requests within seven days for non-urgent requests and two days where a delay could jeopardize life or health of the patient. The Senate's bipartisan bill regulating prior authorizations is found in SB 5.  One may expect the stakeholders to try to reconcile the differences between the two bills.
 
HB 2355
The introduction this week of HB 2355 drew considerable public comment and wide-spread approval as it seeks to make it a misdemeanor to continuously operate a vehicle in the left lane of a multi-lane road when doing so impedes the flow of traffic. More than a dozen other states have similar legislation, but there is no word whether it is expected to become law.
 
SENATOR PAUL HARDESTY
After the resignation of State Senator Richard Ojeda (D-Logan), Governor Jim Justice appointed long-time lobbyist and former state official Paul Hardesty to complete the remainder of Senator Ojeda's term. Senator Hardesty served in various roles in the Wise and Manchin administrations and was most recently the President of the Logan County Board of Education.
 
GOVERNOR JUSTICE'S LEGISLATIVE PROPOSALS
By the end of the second week of the regular session, some of Governor Justice's legislative proposals he highlighted in the State of the State speech have been introduced in both the House of Delegates and Senate.  As is tradition, when the Governor submits bills to the legislature for consideration, the legislation carries with it the "By Request of the Executive" notation and both the President of the Senate and Speaker of the House of Delegates "sponsor" the legislation alongside the Minority Leaders in both houses. Aside from the FY2020 Budget Bill (SB 150 and HB 2020), the Governor's Office has thus far formally introduced legislation, among others, to create an intermediate court of appeals, to create incentive pay for mathematics teachers, to create the West Virginia cybersecurity office within the Office of Technology, and to move the Division of Homeland Security and Emergency Management from the Department of Military Affairs and Public Safety to the Adjutant General and National Guard Department.
 
SB 342
One major piece of legislation introduced at the Governor's request is SB 342, which would eliminate the state's personal income tax on social security and certain railroad retirement benefits. 
 
SB 1
An education bill supported by Governor Justice will receive a vote on the Senate floor later this week. SB 1, sometimes referred to as the WV Invests program, would provide funding for students to attend one of the state's community and technical colleges and to possibly pay off a student’s tuition balance if certain conditions are met. It has sometimes been called the “last dollar in” bill. One of the publicly stated goals of this legislation is to encourage students to receive the vocational or technical training they may need for emerging jobs in industries such as natural gas, manufacturing or healthcare industries. While this bill seems to have bipartisan support in the Senate, its path in the House of Delegates is somewhat murkier due to concerns raised by some of the state's four-year colleges and universities that have similar academic programs to those at community and technical colleges under the WV Invests program. The question likely going forward is how to achieve the bill's goals without hurting the rest of higher education who have already been chronically under-funded.
 
HB 2005
One other bill to watch this week and throughout the legislative session is HB 2005, the Broadband Expansion Act of 2019. This act has several components including: a provision to offer a five-year tax credit to encourage construction of new cell towers, a “Make-Ready Pole Access” section governing access to fiber on certain existing utility poles, and the West Virginia Small Wireless Facilities Deployment Act, which is focused on placing small antenna boxes, called small wireless facilities, in communities to enable 5G broadband access.
 
SB 260
In the area of workers' compensation, SB 260, a bipartisan bill sponsored by all three physicians in the Senate, reinstates 5 percent award for a diagnosis of occupational pneumoconiosis without measureable impairment and adds a new provision granting a 25 percent permanent partial disability award for a diagnosis of massive fibrosis or complicated pneumoconiosis without impairment.
 
HB 2479
HB 2479 was introduced at the request of the Offices of the Insurance Commissioner. The purpose of this bill is to require insurers writing more than $500 million, or insurance groups writing more than $1 billion, in annual premiums to maintain an internal audit function providing independent, objective and reasonable assurance to the insurer’s or insurance group’s audit committee regarding the insurer’s governance, risk management and internal controls. The bill also requires an insurer or insurer group to annually provide a confidential disclosure regarding its corporate governance practices. The legislation is needed for the State of West Virginia to remain accredited with the National Association of Insurance Commissioners. This is an NAIC Modal Act.
 
HB 2480
In addition, HB 2480 was introduced at the request of the Offices of the Insurance Commissioner. This bill is to provide authority to a designated state insurance commissioner to act as a group-wide supervisor for an internationally active insurance group. For a holding company group to be considered an internationally active insurance group, it must meet various criteria, including premiums written in at least three countries, at least 10 percent of premiums written outside the United States, and total assets greater than $50 billion or total premiums greater than $10 billion. The legislation is needed for the State of West Virginia to remain accredited with the National Association of Insurance Commissioners. This is an NAIC Model Act.
 
The government relations team at Spilman will be tracking and reporting further on these and other bills and major developments during the legislative session that may impact your business interests in West Virginia. If you have any questions, do not hesitate to contact one of our professionals.
 
Government Relations Alexander Macia
304.340.3835
amacia@spilmanlaw.com Jason C. Pizatella
304.340.3868
jpizatella@spilmanlaw.com